Dated Nov. 2020

Thermo Fisher Scientific (“Thermo Fisher”) will provide an Uptime Guarantee (“Uptime Guarantee”) related to the following instruments: Applied Biosystems 7500 Fast Dx Real-Time PCR System, Applied Biosystems 7500 Fast Real-Time PCR System, Applied Biosystems 7500 Real-Time PCR System, Applied Biosystems QuantStudio 5 Real-Time PCR System, 96 well 0.1 mL and 0.2 mL, and 384-well, Applied Biosystems QuantStudio 5 Dx Real-Time PCR System (CE-IVD only), Applied Biosystems QuantStudio 7 Flex Real-Time PCR System, 384 well, KingFisher™ Flex Purification System (each a “System”) only when a System is covered by a Thermo Fisher AB Platinum Service Plan (“Service Plan”). Customers must contact Thermo Fisher Scientific Technical Support to submit any Uptime Guarantee claim.

Each System will have an Uptime Percentage of no less than ninety-eight percent (98%) over the applicable Measuring Period. The Uptime Percentage is calculated as follows: 100 X (Total Number of Available Hours that a System is Up over the Measuring Period) ÷ (Total Number of Available Hours within the Measuring Period). A System is considered “Up” when the System is performing within its stated specifications during Available Hours when being run by a trained user in accordance with Thermo Fisher’s user guidelines. The ”Measuring Period” means, the previous six-month period under a valid Service Plan. "Available Hours” means the set period of time during any given calendar day that a System is scheduled to be available for operation, excluding any time that a System is not operational or available due to any of the Downtime Exclusions set forth below. 

The Uptime Guarantee offered will only apply during the duration of (1) a System’s original warranty period, and (2) during the term of any applicable Service Plan between the Customer and Thermo Fisher for such System, provided, that such service agreement is current and has been continuously in effect following the end of the original warranty period. The Uptime Guarantee does not apply to any leased or rented instruments.

Downtime Exclusions. Downtime does not include any amount of time that the System is not in operation due to any of the following items:

  1. Routine scheduled service and maintenance of the System;
  2. Problems arising from Customer’s failure or unreasonable delay in having routine service and maintenance of the System performed; 
  3. Customer does not perform daily, weekly, and monthly routine maintenance on the System
  4. Customer does not use the System in accordance with user documentation;
  5. Customer does not follow its internal protocols regarding sample collection, sample preparation and/or operation of the System and such failure adversely impacts the operation of the System and/or the results that the System generates;
  6. Customer does not in good faith provide adequate details of perceived problems with the System, including any appropriate troubleshooting of the problem with the Thermo Fisher service hot-line; 
  7. Customer’s inability to use the System due to Customer’s failure to keep consumables and reagents necessary to run the System on-hand;
  8. Customer causes the Downtime of the System for any reason, including but not limited to relocation of one or more items included within the System;
  9. The System is not usable due to a general problem at Customer’s site that impacts the site generally (e.g., a site-wide power outage);
  10. Servicing (including repair) of a System is delayed due to Thermo Fisher service personnel being unable to access the System or access is more restrictive than designated operational hours;
  11. Parts are damaged, lost, or fail because of accident, fire, theft, acts of nature (storms, floods, etc.), operator negligence, unauthorized troubleshooting, contaminated power, water or air supplies as well as any data processing sources externally connected to the System or the use of third party reagents;
  12. The original installation date of the System was greater than 7 years ago or the System has exceeded its designated usable life;
  13. The period of time during which the Customer fails to notify Thermo Fisher that the System is not in operation; or 
  14. The System is eligible for remote connectivity for troubleshooting, but the Customer has not provided Thermo Fisher service personnel access to the System via Customer’s IT network.

Remedies. If the applicable Uptime Guarantee is not met for a System the following remedies apply with respect to that System:

  1. First verified failure to meet Uptime Guarantee: The first time a System is verified by Thermo Fisher to have failed to meet the Uptime Guarantee requirement over the applicable Measuring Period, no remedies would apply. However, representatives of Thermo Fisher and Customer will meet in good faith to discuss possible operator issues and mutually acceptable means and methods for resolving any identified Downtime causes.
  2. Second verified failure to meet Uptime Guarantee: The second time a System is verified by Thermo Fisher to have failed to meet the Uptime Guarantee over the applicable Measuring Period, Thermo Fisher will extend the applicable service agreement relative to the affected System(s) by two weeks. Customer must renew their Service Plan for an additional year in order to claim this remedy. The extension will be applied to the Service Plan once it is renewed.
  3. Third or greater verified failure to meet Uptime Guarantee: The third or greater time a System is verified to have failed to meet the Uptime requirement over the applicable Measuring Period, Thermo Fisher will extend the applicable service agreement relative to the affected System(s) by four weeks.